INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
CAVAN COUNTY COUNCIL
(REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT SERVICES BOARD)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Pierce
Worker Member: Mr O'Neill
1. Appeal against Rights Commissioners Recommendation.
2. Cavan County Council employed the worker in a temporary capacity as a general operative in September, 2000. In August, 2001, the Council held interviews for the position of general operative in the Cootehill area. The worker was placed 14th on this panel. There were only four vacancies available. The worker was informed that his temporary employment would not be renewed, as the Council would be recruiting for permanent general operatives from the panel created. The worker’s employment was terminated on 30th November, 2001.
The Union referred the matter to a Rights Commissioner for investigation and recommendation. His recommendation issued on the 29th January, 2002, as follows:
“I recommend that the claimant be reinstated as a general operative, with immediate effect. When he becomes the next candidate on the panel in line for a permanent position, I recommend that he should be made permanent.”
The Council appealed the recommendation to the Labour Court on the 15th February, 2002, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place in Cavan on the 28th June, 2002, the earliest date suitable to both parties.
3. 1. It was explained to the worker that the employment was temporary until a new panel was formed.
2. The Council held interviews with an independent board in August, 2001, for the positions of general operatives. There was at that time only four vacancies. The worker was not placed in the top four.
3. The worker was given a final temporary 3 month contract of employment to enable him to seek alternative work. It was emphasised that this contract was final.
4. The worker was included on the superannuation scheme. This was in line with agreed procedures, whereby all employees, regardless of status, with six months service, are automatically included on the scheme.
5. Temporary employees are not given an expectation of permanent employment. Recruitment is through normal procedures.
6. The recruitment of permanent staff is a different process from that of temporary staff. Permanent posts are advertised, formal interviews held, references sought and there is a requirement to undergo a probationary period.
7. Temporary employees' contracts are terminated on the expiry date of the contract when permanent posts are filled.
8. The Rights Commissioner’s decision has resulted in ambiguity for the position of all candidates who were placed higher in order of merit than the worker.
4. 1. The worker carried out his duties in a competent and diligent manner, had a good attendance and time-keeping record.
2. The expectation of the worker was that in time his employment status would become that of permanency.
3. Superannuation contributions were paid after completion of a six month period of continuous employment.
4. On 30th November, 2001, the worker had fourteen months continuous employment with the Council. The Union contends that the worker was a protected employee.
5. Vacant general operative positions existed when the worker’s employment was terminated.
The Court has given consideration to all aspects of this appeal of the Rights Commissioner's recommendation by the employer. The Court is satisfied that the worker was fully aware at all times that his employment was of a temporary nature. As a result of representation by the Union, management agreed to extend his employment from August 2001 to 30th November 2001. This was acceptable to the Union.
The worker signed a fixed term contract. This contract terminated on 30th November 2001, strictly in accordance with its terms.
The competition process for permanent vacancies was in accordance with agreed procedures.
Accordingly, the Court is of the view that the County Council has complied with all necessary procedures and, therefore, the Court overturns the Rights Commissioner's recommendation. The appeal succeeds.
The Court so decides.
Signed on behalf of the Labour Court
15th July, 2002______________________
Enquiries concerning this Decision should be addressed to Caroline Hayes, Court Secretary.